Lessard v. Schmidt

• Decision Date: 18 October 1972
• Docket Number: Civ. A. No. 71-C-602.
• Citation: 349 F. Supp. 1078
• Parties: Alberta LESSARD et al., Plaintiffs, v. Wilbur SCHMIDT et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

349 F. Supp. 1078

Alberta LESSARD et al., Plaintiffs, v. Wilbur SCHMIDT et al., Defendants.

Civ. A. No. 71-C-602.

United States District Court, E. D. Wisconsin.

October 18, 1972.

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Robert H. Blondis and Thomas E. Dixon, Jr., Milwaukee Legal Services, Milwaukee, Wis., for plaintiffs.

Ward L. Johnson, Asst. Atty. Gen., Madison, Wis., for defendants Schmidt and Ganser.

George E. Rice, Deputy Corporation Counsel, Milwaukee, Wis., for defendants Currier, Pyle, Kennedy, and Seraphim.

Roger Walsh, Asst. City Atty. for West Allis, West Allis, Wis., for defendants Mejchar and Schneider.

Before SPRECHER, Circuit Judge, REYNOLDS, Chief District Judge and GORDON, District Judge.

SPRECHER, Circuit Judge.

Alberta Lessard was picked up by two police officers in front of her residence in West Allis, Wisconsin, and taken to the Mental Health Center North Division, Milwaukee, on October 29, 1971. At the Center, the police officers, defendants James D. Mejchar and Jack Schneider, filled out a form entitled "Emergency Detention for Mental Observation," following which Miss Lessard was detained on an emergency basis. On November 1, 1971, the same police officers appeared before defendant Judge Christ T. Seraphim, Milwaukee County Court, and restated the allegations contained in the petition for emergency detention. On the basis of this ex parte proceeding, Judge Seraphim issued an order permitting the confinement of Miss Lessard for an additional ten days. Thereafter, on November 4, 1971, defendant Dr. George Currier filed an "Application for Judicial Inquiry" with Judge Seraphim, stating that Miss Lessard was suffering from schizophrenia and recommending permanent commitment. At this time Judge Seraphim ordered two physicians to examine Miss Lessard, and signed a second temporary detention document, permitting Miss Lessard's detention for ten more days from the date of the order. This period was again extended on November 12, 1971. Neither Miss Lessard nor anyone who might act on her behalf was informed of any of these proceedings.

On November 5, 1971, Judge Seraphim held an interview with Miss Lessard at the Mental Health Center. At this interview, Judge Seraphim informed Miss Lessard that two doctors had been appointed to examine her and that a guardian ad litem would be appointed to represent her. He asked her if she wished to have her own doctor examine her. Miss Lessard replied that she had no physician. Miss Lessard was not told of this interview in advance and was given no opportunity to prepare for it. Following the interview, Judge Seraphim signed an order appointing Daniel A. Noonan, an attorney, as guardian ad litem for Miss Lessard.

Miss Lessard, on her own initiative, retained counsel through the Milwaukee Legal Services, on November 9 or 10. On November 15, 1971, at 2:00 P.M., Miss Lessard was notified that a commitment hearing had been scheduled for 8:30 A.M., the following morning. This hearing was adjourned and reset for November 24, 1971, in order to give Miss Lessard's attorney an opportunity to appear. Miss Lessard's request that she be allowed to go home during the interim was denied. At the November 24 hearing before Judge Seraphim, testimony was given by one of the police officers and three physicians and Miss Lessard was ordered committed for thirty additional days. Judge Seraphim gave no reasons for his order except to state that he found Miss Lessard to be "mentally ill." Although the hospital authorities permitted Miss Lessard to go home on an out-patient "parole" basis three days later, the thirty day commitment order has been extended for one month each month since November 24, 1971.

The present suit, brought as a class action on behalf of Miss Lessard and all other persons 18 years of age or older who are being held involuntarily pursuant to any emergency, temporary or permanent commitment provision of the Wisconsin involuntary commitment statute, was filed on November 12, 1971. Jurisdiction was claimed under 42 U.S.C. § 1983.¹ The complaint sought declaratory and injunctive relief against the enforcement of certain portions of Wis. Stat.Ann. §§ 51.02, 51.03 and 51.04, relating to the procedure for involuntary detention and commitment of persons alleged to be suffering from mental illness. The complaint sought a temporary restraining order restraining the officials involved from proceeding further against Miss Lessard or detaining her involuntarily for any additional length of time. A three-judge court was requested. In an order dated December 3, 1971, Judge Reynolds of the federal district court for the Eastern District of Wisconsin denied temporary relief but agreed that the substantial constitutional claims raised by the pleadings required the convening of a three-judge court. 28 U.S.C. § 2281.

Miss Lessard alleges that the Wisconsin procedure for involuntary civil commitment denied her due process of law in the following respects: in permitting involuntary detention for a possible maximum period of 145 days without benefit of hearing on the necessity of detention; in failing to make notice of all hearings mandatory; in failing to give adequate and timely notice where notice is given; in failing to provide for mandatory notice of right to trial by jury; in failing to give a right to counsel or appointment of counsel at a meaningful time; in failing to permit counsel to be present at psychiatric interviews; in failing to provide for exclusion of hearsay evidence and for the privilege against self-incrimination; in failing to provide access to an independent psychiatric examination by a physician of the allegedly mentally ill person's choice;² in permitting commitment of a person without a determination that the person is in need of commitment beyond a reasonable doubt; and in failing to describe the standard for commitment so that persons may be able to ascertain the standard of conduct under which they may be detained with reasonable certainty. Before turning to these issues we must dispose of a jurisdictional question.

I.

Defendants insist that this court lacks jurisdiction under the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and the federal anti-injunction statute, 28 U.S.C. § 2283. The federal anti-injunction statute is inapplicable to suits under 42 U.S.C. § 1983. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). The rationale of Younger v. Harris is also inapplicable to this case.

The Supreme Court in Younger severely limited the circumstances in which federal courts should intervene in pending state criminal prosecutions. But the court expressly disavowed extending the same limitations to intervention in pending state civil proceedings like those involved here. Younger v. Harris, 401 U.S. 37, 54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (Stewart, J., concurring). Since Younger, the court has on at least two occasions declined to dismiss federal actions brought while state civil proceedings were pending. Lynch v. Household Finance Corporation, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Mitchum v. Foster, supra. The basis for distinguishing between criminal and civil cases in applying principles of comity were summarized by Justice Stewart in Younger:

"Courts of equity have traditionally shown greater reluctance to intervene in criminal prosecutions than in civil cases. Citations omitted. The offense to state interests is likely to be less in a civil proceeding. A State's decision to classify conduct as criminal provides some indication of the importance it has ascribed to prompt and unencumbered enforcement of its law. * * *" 401 U.S. at 55 n. 2, 91 S. Ct. at 757.

Even if Younger were to apply to state civil actions, we do not believe that such an action existed under the circumstances shown here. Although notice had been filed with the sheriff and examining physicians, setting a hearing for involuntary commitment prior to the filing of the federal court action on November 12, 1971, plaintiff had no written notice of any "pending" proceeding at the time this action was instituted.

It is also open to doubt whether the state court "action" was the type of state court proceeding against which principles of federalism and comity have been directed. The Wisconsin Supreme Court has held that a civil commitment proceeding is not in the nature of a state court action. In re Brand, 251 Wis. 531, 30 N.W.2d 238, appeal dismissed, cert. denied, Brand v. Milwaukee County, 335 U.S. 802, 69 S.Ct. 34, 93 L.Ed. 359 (1948).

Furthermore, assuming that a state court action existed at the time this suit was filed, the proceedings against which this action are addressed have long since terminated and the existence of a right of appeal is speculative. In In re Brand, supra, the Wisconsin Supreme Court held that there was no right of appeal from a civil commitment proceeding. Although the statute has since been amended, the legislature did not specifically authorize an appeal. The lack of such a provision in the general civil commitment statute is in sharp contrast to the explicit appeal right provided under the Wisconsin Sex Crimes Act. Wis. Stat.Ann. § 975.16. If any right of appeal does exist, it arises under Wis. Stat.Ann. § 274.01(1) (1972 Supp.), which provides: "Except as otherwise provided the time within which a writ of error may be issued or an appeal taken to obtain a review by the supreme court of any judgment or order in any civil action or special proceeding in a court of record is limited to 3 months from service of notice of entry of such judgment or order or, if no notice is served, to 6 months from date of entry." An additional provision states that the above time limitations do not apply in cases in which a judgment is rendered against an insane person. However, since the very purpose for an appeal of a judgment of insanity is to challenge that...